Quietfield Limited -v- Vascroft Construction Limited
Case reference:
[2006] EWCA Civ 1737
Wednesday, 20 December 2006
Key terms: Breach of Natural Justice – successive disputes – same dispute – Section 108(3) – Scheme para 23(2) – para 9(2) and (4) - extensions of time
This was an appeal from the judgment of Mr Justice Jackson. Quietfield employed Vascroft to carry out renovation, alteration and addition works to a mansion pursuant to an amended JCT 1998 contract. There were delays to the works and they were not completed by the completion date. Vascroft made two specific applications to the architect for extensions of time. The first was in a letter dated 2 September 2004 which requested an extension until 9 June 2005. The letter had an attachment which identified 12 matters as being the causes of delay. The second application was made in a letter to the architect dated 22 April 2005 and it relied on delay caused by work being carried out by other and asked for an extension until 23 September 2005. The architect did not give an extension of time.
In August 2005, Vascroft wrote to Quietfield with a Notice of Adjudication. The dispute referred to adjudication included Vascroft’s claims for extension of time on the basis of the matters set out in their two letters. The adjudicator declined Vascroft an extension of time but awarded some money for their financial claims. Quietfield subsequently commenced an adjudication for liquated and ascertained damages for Vascroft’s failure to complete the works on time. The same adjudicator was appointed to determine the dispute. Vascroft resisted the claim contending that they were entitled to an extension of time for the whole period on the grounds set out in Appendix C to their response. The adjudicator decided that he was not able to have regard to the matters set out in Appendix C because he was bound by the decision given in the first adjudication and considered that Vascroft’s defence was seeking to rely for a second time on the same matters as they had unsuccessfully relied on in the first adjudication.
Mr Justice Jackson refused to enforce the adjudicator’s decision. The question was whether the matters in Appendix C were put forward in the first adjudication. Clause 25 of the condition permitted the contractor to make successive applications for extensions of time on different grounds and successive adjudications concerning extensions of time must be permissible provided that each adjudicator arises from a separate dispute.
Lord Justice May referred to the 4 principles set out by Mr Justice Jackson regarding successive adjudications about extension of time and damages for delay and agreed with them. The scope of an adjudicator’s decision is normally defined from section 108 of the Act and paragraphs 9(2) and 23 of the Scheme. Appendix C did not contain the same claims as was advanced in the two notification letters – it had a fairly sophisticated and new critical path analysis and identified a number of causes of delay which did not feature in the two letters. The adjudicator was wrong not to consider Appendix C and accordingly the appeal should be dismissed.
Lord Justice Dyson also agreed that the appeal should be dismissed. He stated:
In August 2005, Vascroft wrote to Quietfield with a Notice of Adjudication. The dispute referred to adjudication included Vascroft’s claims for extension of time on the basis of the matters set out in their two letters. The adjudicator declined Vascroft an extension of time but awarded some money for their financial claims. Quietfield subsequently commenced an adjudication for liquated and ascertained damages for Vascroft’s failure to complete the works on time. The same adjudicator was appointed to determine the dispute. Vascroft resisted the claim contending that they were entitled to an extension of time for the whole period on the grounds set out in Appendix C to their response. The adjudicator decided that he was not able to have regard to the matters set out in Appendix C because he was bound by the decision given in the first adjudication and considered that Vascroft’s defence was seeking to rely for a second time on the same matters as they had unsuccessfully relied on in the first adjudication.
Mr Justice Jackson refused to enforce the adjudicator’s decision. The question was whether the matters in Appendix C were put forward in the first adjudication. Clause 25 of the condition permitted the contractor to make successive applications for extensions of time on different grounds and successive adjudications concerning extensions of time must be permissible provided that each adjudicator arises from a separate dispute.
Lord Justice May referred to the 4 principles set out by Mr Justice Jackson regarding successive adjudications about extension of time and damages for delay and agreed with them. The scope of an adjudicator’s decision is normally defined from section 108 of the Act and paragraphs 9(2) and 23 of the Scheme. Appendix C did not contain the same claims as was advanced in the two notification letters – it had a fairly sophisticated and new critical path analysis and identified a number of causes of delay which did not feature in the two letters. The adjudicator was wrong not to consider Appendix C and accordingly the appeal should be dismissed.
Lord Justice Dyson also agreed that the appeal should be dismissed. He stated:
“[T]he contractor must present some new material which could reasonably lead the architect to reach a different conclusion from that on which he based his earlier decision or decisions. … I can see no reason to construe clause 25 so as to prohibit the contractor from relying on the same Relevant Event as he relied on in support of a previous application for extension of time, giving materially different particulars of the expected effects and/or a different estimate of the extent of the expected delay to the completion of the Works.
Whether dispute A was substantially the same as dispute B was a question of fact and degree. The written notices that formed the basis of the second claim identified Relevant Events which were substantially more extensive than those which formed the basis of the first claim. The particulars were different too. Although there will be some extensive cases where it is a matter of judgement but this was not a borderline case.